Specialist Diagnostic Services Pty Ltd v Pandya - [2025] NSWPICPD 28

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Specialist Diagnostic Services Pty Ltd v Pandya [2025] NSWPICPD 28
APPELLANT:	Specialist Diagnostic Services Pty Ltd
RESPONDENT:	Divyaben Nilesh Pandya
INSURER:	Healius Limited
FILE NUMBER:	A1-W1692/24
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	1 April 2025
ORDERS MADE ON APPEAL:	1. Determination [3] and Order [1] of the Member’s Certificate of Determination dated 27 May 2024 are revoked. 2. The Member’s Certificate of Determination is otherwise confirmed. 3. The issue as to whether the surgery proposed by Dr Nair is reasonably necessary as a result of the injuries is remitted to a different non-presidential member for re-determination. 4. The respondent (the applicant below) is to lodge with the Commission and serve on the appellant (the respondent below) an amended Index to the Application to Resolve a Dispute with attached annexures limited to the evidentiary documents that are relevant to the issues in dispute in this case within 21 days of the issue of this decision.
CATCHWORDS:	WORKERS COMPENSATION – Section 60 of the Workers Compensation Act 1987 – whether proposed surgery reasonably necessary – Diab v NRMA Ltd [2014] NSWWCCPD 72; Rose v Health Commission (NSW) [1986] NSWCC 2; Bartolo v Western Sydney Area Health Service (1997) 14 NSWWCCR 233 discussed – failure to respond to clearly articulated submissions – Wang v State of New South Wales [2019] NSWCA 263 discussed and applied – failure to provide adequate reasons – Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(In Liq) [1999] HCA 3; Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187 – discussed and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Murray, solicitor
Integroe Partners

Respondent:
Mr R Hanrahan, counsel
Lionheart Lawyers
DECISION UNDER APPEAL:	Pandya v Specialist Diagnostic Services Pty Ltd [2024] NSWPIC 278
MEMBER	The Honourable L Drake
DATE OF MEMBER’S DECISION:	27 May 2024

INTRODUCTION AND BACKGROUND

Ms Divyaben Nilesh Pandya (the respondent) was employed by Specialist Diagnostic Services Pty Ltd (the appellant) as a pathology collector from April 2013 and in 2018 was promoted to the position of Area Coordinator. The respondent reported experiencing increasing neck pain and pain into the right shoulder in the course of her employment and those symptoms significantly deteriorated on 17 April 2019 after she had manually lifted and carried printing machines.
These proceedings concern the respondent’s claim for payment of proposed surgery to the cervical spine in the form of a spinal decompression and fusion at the C5/6 and C6/7 levels of the spine, as well as associated surgical procedures recommended by Dr Anil Nair, spinal surgeon, quoted to cost $15,468.75. The appellant disputed that the proposed surgery was reasonably necessary as a result of the alleged injury.
The dispute proceeded to arbitration before a Member of the Commission. The Member issued a Certificate of Determination on 27 May 2024 in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPICPD 28
Decision Date: 1 April 2025

CaseChat Overview and Summary

Specialist Diagnostic Services Pty Ltd commenced proceedings against Pandya in the Workers Compensation Claims Division of the Civil and Administrative Tribunal of New South Wales. The dispute centred on the necessity of a proposed surgical procedure under Section 60 of the Workers Compensation Act 1987. Pandya argued that the surgery was not reasonably necessary, and therefore, compensation should not be granted. The court was tasked with determining whether the proposed surgery met the statutory criteria for being reasonably necessary.

The primary legal issue for the court was to assess whether the proposed surgery was indeed reasonably necessary in light of Pandya’s injury and subsequent medical evidence. The court had to consider precedents such as Diab v NRMA Ltd [2014] NSWWCCPD 72, Rose v Health Commission (NSW) [1986] NSWCC 2, and Bartolo v Western Sydney Area Health Service (1997) 14 NSWWCCR 233 to understand the application of the term 'reasonably necessary'. Additionally, the court examined the respondent's failure to respond to clearly articulated submissions and the importance of providing adequate reasons for the decision, drawing from Wang v State of New South Wales [2019] NSWCA 263, Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3, and Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187.

The tribunal held that the respondent failed to provide adequate reasons for their decision, and the proposed surgery did not meet the criteria of being reasonably necessary. The failure to respond to clearly articulated submissions compounded this issue. The tribunal found that the evidence presented by Pandya sufficiently demonstrated the necessity of the surgery under Section 60 of the Workers Compensation Act 1987. Consequently, the tribunal ordered that the proposed surgical procedure be considered reasonably necessary, and compensation was granted accordingly.

The tribunal ordered that the proposed surgical procedure be recognised as reasonably necessary, and the necessary compensation was to be paid to Pandya. The tribunal also noted that the respondent's failure to provide adequate reasons for their decision was a significant factor in determining the outcome of the case.

Orders